By Carrie Severino
Published July 21, 2019
Justice John Paul Stevens was the last of the greatest generation. Stevens enlisted in the Navy the day before the Japanese attacked Pearl Harbor. He was awarded the Bronze Star for his work as a cryptographer: his codebreaking team’s efforts led to the downing of the plane of Admiral Isoroku Yamamoto, the commander of the Japanese navy and architect of the Pearl Harbor attack.
Stevens would go on to reference his experience as a World War II veteran often in his Supreme Court opinions. Especially memorable was his defense of the American flag in Texas v. Johnson, the 1989 case in which the court held that the First Amendment protected the burning of the flag. Dissenting from the court’s decision, he asserted:
The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for — and our history demonstrates that they are — it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration.
In 1975, President Ford nominated Stevens to replace Justice William O. Douglas, an unabashed liberal on a court that was then prone to a high level of judicial activism. In the aftermath of Watergate, Ford was more focused on experience and integrity, both of which Stevens possessed, than judicial philosophy. While Stevens was affiliated with the Republican Party (and certainly considered himself a political conservative), he was never — and never pretended to be — an originalist. And nobody asked Stevens if he was an originalist, because nobody cared if he was.
Without having demonstrated a clear philosophy, Stevens initially was a swing justice. But over his 34-year tenure, he became a consistent vote for the liberal bloc. His shifts leftward included his positions in cases involving the death penalty, the public funding of abortion, the 11th Amendment, and racial preferences.
For example, in 1979 he wrote, "The ultimate goal must be to eliminate entirely from governmental decisionmaking such irrelevant factors as a human being’s race," only to endorse state law schools’ consideration of race in 2003.
Stevens' leftward drift is not surprising in light of the selection process that produced his Supreme Court nomination. That process couldn’t be more different from the one now in place today, which resulted in President Trump’s recent nominations of Neil Gorsuch and Brett Kavanaugh.
During the era in which Justice Stevens was appointed, political considerations, rather than jurisprudential ones, drove Supreme Court nominations. Court appointments were given as political rewards (as in the case of President Eisenhower’s nomination of Earl Warren, who had dropped out of the 1952 Republican primary, clearing the way for Ike’s victory) or with the hope of securing segments of the electorate (as in the case of Eisenhower’s nomination of William Brennan, a Catholic Democrat, to curry favor in the Northeast). Shockingly, little consideration was given to a potential nominee’s jurisprudential ideology.
Today’s vetting and selection process for Republican-appointed nominees is one that emphasizes originalism and courageous fidelity to traditional legal principles. By contrast, the old system overvalued politics and was too open to the idea of the organic law as a constantly changing system that deferred to the evolving standards and the preferences of the technocratic elites.
This is perhaps one of Justice Stevens’ most surprising legacies: conservative chagrin over his record was one of the factors that led to an eventual overhaul of the Supreme Court vetting and nomination process for Republican presidents.
The Stevens nomination — along with the subsequent nomination of David Souter — taught conservatives important lessons about judicial selection. Over time, the criteria and expectations for Supreme Court nominees have become much more rigorous. And today we are seeing the fruit of those lessons with the nominations of Justices Gorsuch and Kavanaugh — not to mention the 43 (and counting) court of appeals judges that Trump has appointed.
The number of rock-ribbed constitutionalists populating the federal bench today is simply unprecedented. These new justices and judges share a commitment to faithfully applying the text and original meaning of the Constitution. They are conservative superstars in the legal world; the best and brightest in their fields — law professors, former state solicitors general, state supreme court judges, and leading private practitioners.
A revolution is under way, and there is no going back to the old ways now.